Can Software Be Patented?

I personally think that, no, you can't "patent" software. It's that simple. I also think you can't "patent" sections of genomes. I actually think there are lots of things you can't "patent". But the reason for the quotes is that I don't believe that IP is somehow inherently unprotectable, or that we all have some inherent right to everyone else's ideas. I just think the current system of IP protection maintained in the US and other developed nations is completely broken. It's a model that doesn't work in the digital age.
I won't go into further justifications of my position, nor will I tangent about the horror that is DRM in the music/film space. I will just say that, instead of trying to sue and prosecute individuals for sharing files, we should better invest our efforts and time into finding a way by which IP can be permanently or semi-permanently "tagged", such that the author/creator/developer/discoverer automatically gets royalty or remuneration for the use of his/her stuff. surely, with some focus, the level of technology that exists today could make this sort of thing happen. No "honor system" type stuff, no after-the-fact discovery of misuse, etc. Just simple "you use it, you pay" mandated through technology. Tons of possible variations on the idea exist. But the way things are done now..... Hello? Patent law? The 14th century is calling, you can come back now....

Things are definitely getting surreal in the world of software patents. This story from Information Week about a newly granted "rich-media patent" describes a situation not unlike the Blackberry situation Rob describes:

The patent--issued on Valentine's Day--covers all rich-media technology implementations, including Flash, Flex, Java, Ajax, and XAML, when the rich-media application is accessed on any device over the Internet, including desktops, mobile devices, set-top boxes, and video game consoles, says inventor Neil Balthaser, CEO of Balthaser Online, which he owns with his father Ken. "You can consider it a pioneering or umbrella patent. The broader claim is one that basically says that if you got a rich Internet application, it is covered by this patent."

I'm thinking about patenting the concept of typing text into a computer-connected keyboard such that the text can be displayed on the screen, saved to the hard drive, and/or printed to a printer. What's your patent?

Dan

I think Rob's original post hits the nail on the head in elucidating that an idea without a concrete representation of implementation can be patented. That allows for stupid flights of fancy like the "rich-media patent" Dan references -- umbrella efforts which seek to encompass all manifestations of forward thinking based on current conditions. One cannot take credit for things that arise years hence when one cannot even demonstrate how today's technology works.

However...I do think software can be patented if the specifics are laid out as part of the deal. This, to me, differs from the notion of patenting the genome since the genetic code has existed since time immemorial and is not a product of human ingenuity. Such a thing cannot be patented. But if anyone here has an idea that they can concretely represent and deliver, why shouldn't they patent it? Requiring that concrete implementation plans be provided along with the patent ensures restriction to a small set of conditions and removes the threat of people with their over-arching parasols.

From the AP Wire story:

Research In Motion Ltd., the maker of the BlackBerry e-mail device, announced Friday it has settled its long-running patent dispute with a small Virginia-based firm, averting a possible court-ordered shutdown of the BlackBerry system.

RIM has paid NTP $612.5 million in a “full and final settlement of all claims,” the companies said.

At a hearing last week, NTP had asked a federal court in Richmond, Va., for an injunction blocking the continued use of key technologies underpinning the BlackBerry wireless e-mail service.

...

RIM attorneys also noted that the U.S. Patent and Trademark Office, in a proceeding parallel to the Virginia case, was poised to finally reject all patents at the heart of the case.

I wished they had expanded on that last paragraph I quoted.

Dan

There is a fine and sometimes hard to pin down distinction between a copyright and a patent. I'm not expert on the subject, but I won't let that stop me from expounding . . .

A copyright typically applies to text or artwork. A creative work. A patent applies to an invention or technical process. Software kind of falls in between these two concepts.

Originally you could not patent software--you could only copyright it. And in fact I own an official US government copyright on a piece of software I wrote when I was 13. It was a text-based adventure game, basicaly a total ripoff of Zork, written in Commodore 64 BASIC. The way you got your copyright in those days was by printing out the text of your program and mailing it to the Library of Congress. You were then issued your copyright. It applied not to what your software did, but to the text of your program.

A patent applies more to what your software does than to what it is. According to the Slate article, the ability to patent software was a late arrival. Can you guess why companies would want patents instead of copyrights?

Well, one reason is a patent is more far reaching. Another is that a copyright requires you to make your code pubilc, something that a few software companies seem to have a problem with.

Trevor's idea that the specifics of how the software does what it does be laid out in the patent application is exactly a patent does not require and I don't think we're likely to see anything like this happen. A patent is notoriously easy to get. It requires little more than an application, a vague idea, and a simple diagram.

This whole issue of panents overlaps one of my pet issue--the ability of individuals to enforce their rights in court. I can't help it. Here goes.

A patent is little more than a ticket to a court room. Let's, Dan, that you did not patent a concept everyone already knew about our could guess at. Let's say you actually built a working teleportation machine and then applied for and recieved a patent. Let's say you sent information about that machine to, oh, let's pick on the Koreans and say Samsung, hoping to make a deal. Samsung subsequently starts manufacturing and selling teleportation machines in the US and does not give you one red cent of the profits.

They've recieved their own slightly different patent and are making tons of money.

But wait. They can't do that! Dan's got the patent!

Well, as Rumsfeld told us, free people are free to do bad things. Of course they can do that. Anyone can do anything they want. The only issue is, can you stop them?

This is where your patent comes in. It gives you grounds for a lawsuit. That's it. That's all it is. The patent gives you rights, but unless you have the ability to enforce those rights (that is, access to a court of law), those rights are meaningless.

If you can afford a good enough legal team to wade through the issues and deal with all the complex legal BS that Samsung's extremly well-paid legal team will throw at you, then maybe you have a chance. But if you are unable to pay your attorneys and perhaps laws are in place that stop attorneys from working on contingency (a not at all far-fetched scenario in the current climate in the US) then you are out of luck.

Is this a digression? Not at all. The point is that patents protect well funded "inventors" (read: corporations) much more than they protect the little guy. Thus we have one corporation suing another in this case, something not at all uncommon. In fact, corporations suing each other make up the majority of all non criminal and non family-law court cases.

Perhaps it makes sense to copyright or patent an algorithm. But by and large, patents for software are useless and are used in abusive ways, as in this case. Copyrighting an entire program is a much better idea.

Michael Chriton has an interesting essay on this subject on the New York Times website.